The Design of Products Liability: A Reply to Professors Henderson and Twerski

In The Expectations of Consumers,' I examine a much-maligned products liability doctrine that attempts to rest manufacturer liability for defective product designs on the expectations of ordinary consumers. Although I concur with previous commentators who regard the consumer expectations doctrine to date as both undertheorized and unwieldy in application, I also observe the stubborn refusal of a significant minority of jurisdictions to abandon it. Notably, several of these jurisdictions have clung to the doctrine even after the decisive conclusion of the ALI's Restatement (Third) of Torts: Products Liability that consumer expectations are unworthy of recognition as an independent test for design defect. After first describing these treacherous waters, I then enter them by offering a reinvigorated understanding of the consumer expectations doctrine that seeks to capture important aspects of public health and safety concerns that the Restatement formulation excludes and that courts plausibly might be groping toward in their consumer expectations jurisprudence. Rather than permit unguided conjecture by jury members regarding the content of consumer expectations, however, I recommend that the doctrine be redirected specifically toward those aspects of risk perception and evaluation that express important public values regarding the acceptability of product-caused harms, but that cannot be subsumed within a technically-oriented reasonable alternative design standard. Although I attempt to provide both a theoretical foundation for and a practical explication of the consumer expectations doctrine as reconceived in this light, I also note in the Article that the test "should be thought of as a work in progress, subject to debate and revision in the best spirit of the common law."2 Consistent with that ambition, therefore, I am extremely grateful that Professors Henderson and Twerski, who served as Reporters for the Third Restatement, have offered their careful, constructive response to my proposal.3 Space permits me to address here only two of their critiques. The Reporters contend that the reinvigorated consumer expectations test described in The Expectations of Consumers reflects "elitism," first because it permits courts to make judgments that they believe should be made only by the "more populist-oriented branches of government"4 and, second, because it substitutes the "soft technology" of psychology for the free-